The road to Utopia is the road to Hell. — Communism and socialism are the opiates of the intelligentsia. — The left, in its eternal and futile quest for "equality", is more than willing to abolish liberty and sunder fraternity.

Justice Elena Kagan — voicing the fears of leftists — saysthis about the replacement of Anthony Kennedy by Brett Kavanaugh:

I think it’s been an extremely important thing for the court that in the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who people — found the center where people couldn’t predict in that sort of way. And that’s enabled the court to look as though it was not owned by one side or another, and was indeed impartial and neutral and fair. And it’s not so clear that — I think, going forward, that sort of middle position — you know, it’s not so clear whether we’ll have it.

All of us need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is….

It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply an extension of a terribly polarizing process.

So the job of the Supreme Court isn’t to uphold the Constitution, but to find a middle ground between constitutional and anti-constitutional views.

I am hopeful — but not yet certain — that the addition of Justice Kavanaugh to the Court’s lineup will end the three decades of uncertainty praised by Kagan, and that it will put the Court back in the business of firmly upholding the Constitution. A business that it began to abandon in earnest during the New Deal.

Drawing on statistics kept at SCOTUSblog, I have constructed an index of defection (D) for each justice, for the 2005-2017 terms:

D = percentage disagreement (in non-unanimous cases) with members of own wing/percentage disagreement with members of opposite wing.

The lower the index, the more prone is a justice to vote with the other members of his or her wing; the higher the index, the more prone is a justice to vote with members of the opposing wing. Here’s a graph of the indices, by term:

Kennedy’s long-standing proneness to defect more often than his colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. His turnaround in the 2017 term restored him to the Court’s “conservative” wing.

Roberts slipped a bit in the 2017 term but was still more in step with the “conservative” wing than he had been in the 2014-2015 terms.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017). His slippage in the 2017 term may have been due to the mix of cases at stake.

What’s most striking about the preceding graphs, other than Kennedy’s marked departure from the “conservative” wing after the 2010 term, is the increasing coherence (ideological, not logical) of the “liberal” wing. This graph captures the difference between the wings:

The record of the past six terms (2012-2017) is clear. The “liberals” stick together much more often than the “conservatives”. Perhaps that will change with Justice Kavanough on the Court.

Despite Justice Kennedy’s return to the Court’s conservative wing in the term just concluded (details below), he was a central player in the Court’s war on federalism and long-standing social norms. Chief Justice Roberts has (nominally) presided over the Court for the past 13 terms. But Justice Kennedy — far more often than any justice of his era — has been the Court’s main (and inconsistent) “decider”.

Kennedy’s legacy has been dissected almost ad infiinitum in the several days since he announced his retirement. I will offer just two samples of the (rightly) negative commentary about Kennedy before turning to a statistical summary of the Kennedy-Roberts years.

Since the Earl Warren era, the Supreme Court has assumed enormous power over our politics, and this has become a significant obstacle to the constitutional design of Americans living as a self-governing people….

[T]he Supreme Court routinely has interfered with American self-government, either undoing or forcing results at various levels of government in accordance with its idiosyncratic and elitist views….

The Court undid California’s referendum on gay marriage after having earlier reversed Colorado’s referendum preventing gays from being added to the long list of “protected classes” in employment laws. Using the broad and vague mandates of “substantive due process” and “equal protection,” the Court simply decided the people were wrong and “irrational,” and Justice Kennedy authored opinions that accorded with the views of his friends and neighbors in Washington, D.C. In the process, the Court forbade the people of California and Colorado from undertaking the most quintessentially self-governing act for which the Constitution was designed: passing laws on controversial matters through a referendum.

This is merely an example. The Supreme Court has also second-guessed how wars are conducted, how schools are run, … has created new rights while ignoring those enshrined in the Constitution itself, and generally assumed the role of “super legislature.”

In addressing salient social issues, the Supreme Court has functioned as something of a Delphic Oracle, divining hidden mysteries in the otherwise prosaic constitutional text that disallows historically permitted practices on immigration, the treatment of enemy prisoners, abortion, and much else where the Constitution’s text is either silent or agnostic.

While preempting legislative supremacy and the broad powers of the executive, the Court is, in fact, unrepresentative in all meaningful ways. It is not, of course, supposed to be a representative institution. It is supposed to be a technical and intellectual job, devoted to the analysis of laws in light of other laws and our general law in the form of the Constitution. But it hasn’t been that since the 1930s.

So, in that milieu, it should be, if not representative, at least faithful to and sympathetic with the American people. But far from being sympathetic, its progressivism has been hostile to the mass of people and their views, labeling them irrational and bigoted when they deviate from the very narrow consensus formed among the almost exclusively Ivy League pedigreed justices. The retiring Justice Kennedy mostly embraced this snobbish and busy-body ethos….

[H]e was central to the developing “gay marriage” jurisprudence, which short-circuited the development of such rules (and limits) through legislatures. The left is probably right that this (and other anti-majoritarian rulings) shaped public opinion and pulled it beyond what might have happened using legislative means by themselves. But, at the same time, this approach generated significant backlash and resentment. These types of decisions have also made presidential elections, which should be about governance, instead into potential proxy fights on every social issue under the sun, when such issues otherwise could be resolved organically and diversely through political processes among the various states.

It’s not always been easy for Supreme Court watchers to pigeonhole Kennedy’s jurisprudence. In fact, one mainstay of his jurisprudence and view of the Constitution was its inconsistency.

He authored the majority opinion in Gonzales v. Carhart and co-authored the plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey, where abortion regulations were upheld under the most deferential standard of review (rational basis).

But then he joined the liberals in Whole Women’s Health v. Hellerstedt, requiring Texas to meet a higher standard of review for its commonsense regulation of abortion providers.

In Schuette v. BAMN, a case about a state’s ability to prohibit racial preferences in college admissions, Kennedy wrote:“It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Yet the following year, in Obergefell v. Hodges, Kennedy was unwilling to extend the same goodwill to voters to decide through the democratic process whether their states should recognize same-sex marriages, cutting short a vibrant public debate over the issue.

Writing for the majority in Fisher v. University of Texas at Austin in 2013, Kennedy held that the university must prove that its use of race in admissions met the requirements of the 14th Amendment’s Equal Protection Clause and sent the case back to the lower court. When the case returned in 2016, Kennedy wrote for the majority again, gutting his 2013 decision and allowing the university to continue sorting students by race without defining its diversity goals or proving that race was necessary to meet its goals.

Do the numbers bear out the impression of Kennedy as an unreliable “conservative”? Yes.

In “U.S. Supreme Court: Lines of Succession and Ideological Alignment“, I have drawn on statistics provided by SCOTUSsblog to summarize the degree of disagreement among the various justices in non-unanimous cases during each of the Court’s past 13 terms. (The use of non-unanimous cases highlights the degree of disagreement among justices, which would be blurred if all cases were included in the analysis.) The statistics yield an index of defection (D) for each justice, by term:

D = percentage disagreement with members of own wing/percentage disagreement with members of opposite wing.

The lower the index, the more prone is a justice to vote with the other members of his or her wing; the higher the index, the more prone is a justice to vote with members of the opposing wing. Here’s a graph of the indices, by term:

Kennedy’s long-standing proneness to defect more often than his colleagues grew markedly in the 2014-2015 terms and receded a bit in the 2016 term. His turnaround in the 2017 term restored him to the Court’s “conservative” wing.

Roberts slipped a bit in the 2017 term but is more in step with the “conservative” wing than he had been in the 2014-2015 terms.

Gorsuch started out strongly in his abbreviated 2016 term (he joined the Court in April 2017). His slippage in the 2017 term may have been due to the mix of cases at stake.

Perhaps that’s the reason for Roberts’s slippage in the 2017 term — or perhaps Roberts is “growing in office”, as leftists like to say about apostate conservatives. Time will tell.

What’s most striking about the preceding graphs, other than Kennedy’s marked departure from the “conservative” wing after the 2010 term, is the increasing coherence (ideological, not logical) of the “liberal” wing. This graph captures the difference between the wings:

The record of the past 6 terms is clear. The “liberals” stick together much more often than the “conservatives”. Perhaps that will change with the replacement of Kennedy by (one hopes) a real conservative.

Like this:

UPDATED 06/27/18, ON THE OCCASION OF KENNEDY’S RETIREMENT ANNOUNCEMENT

Law professor and blogger Tom Smith (The Right Coast) quotes from and comments on yet another speculative piece about the (hoped for) retirement of Justice Anthony Kennedy:

The Washington rumor mill is churning with speculation about whether Justice Anthony Kennedy will retire at the end of the Supreme Court’s term next month.

The rumors seem to pop up annually in recent years. But with Kennedy’s 30th year on the high court passing in February and the justice nearing 82, the whispers about his future seem to be growing louder.

But how will the country endure without its chief moral arbiter? At every turn, Justice Kennedy has been there to make the final, incoherent distinction between right and wrong, between popular and unpopular, between what strange and incomprehensible thing the Law seems to say and what the murk at the heart of his conscience demands, at least for now.

Somebody should write something about this — the making of uber-political decisions on the basis of law-like rhetoric, which everybody knows is just politics, but which everyone agrees should be cloaked as law, while still knowing it is politics. Maybe this is a good thing? Keeps the lid on and all that? But no one has practiced this craft (?), art (?), or rubbishy self-indulgence (?) more semi-artfully than Justice Kennedy. He’s the un-Bork, the un-Ginsburg. He’s what you get.

I couldn’t possibly have put it that well. Kennedy has been fairly consistent in his use of judicial power to undermine civilizing social norms and the rule of law. Although he came out on the correct and decisive side of some crucial issues in the waning days of his justiceship, he too eagerly strove for “balance” and too timidly took up the cause of liberty (e.g., Masterpiece Cakeshop).

There is a canard, which I have read many times during the past few years, that Supreme Court Justices tend to retire during the tenure of president who is of the same party as the president who nominated them. This is the kind of balderdash that becomes “knowledge” among reporters and pundits who can’t be bothered to look up the facts.

Well, I have looked up the facts, and here’s what they tell me about the 35 justices* who have resigned or retired since 1900:

Slightly more than half of them (18) left office under a president of the same party as the president who nominated them.

Nine others are Democrat appointees who retired with a Republican in the White House. The last of these was Thurgood Marshall, who was nominated by LBJ and retired 27 years ago, during the presidency of G.H.W. Bush. Marshall’s retirement was like a gift from heaven because it resulted in the nomination and (painful) confirmation of Clarence Thomas, a faithful constitutionalist.

The remaining eight were Republican nominees who retired with a Democrat in the White House. Three of the last four justices to retire are in this category: Harry Blackmun (author of the infamous Roe v. Wade decision), nominated by Nixon and retired under Clinton; David Souter (another RINO), nominated by G.H.W. Bush and retired under Obama; and John Paul Stevens (the biggest RINO in captivity), nominated by Gerald Ford and retired under Obama.

It is poetic (pun intended) that Kennedy decided to retire during Trump’s presidency, so that he can be replaced by a constitutionalist in the mold of Alito, Thomas, or Gorsuch. I assume plausibly that Trump will in fact nominate someone in that mold.

Here’s the big picture, a plot of retirements by year and their effect on the nominal balance of party affiliations on the Supreme Court:

__________
* Here’s the chronological list of retirements, which the name of each retiring justice, the name of the president who nominated him (and year of accession to the Court), the name of the president at the time of the justice’s retirement (and year of retirement), and the effect of the retirement on the nominal party alignment of the Court:

The list includes Charles Evans Hughes twice. He first joined the Court in 1910, and resigned in 1916 to run for the presidency as a Republican. Hughes was then nominated as chief justice in 1930, to succeed William Howard Taft. Taft was the only person to have served as President of the United States and Supreme Court justice.

Comments & Correspondence

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On Liberty and Libertarianism

What is liberty? It is peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.

John Stuart Mill opined that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." But who determines whether an act is harmful or harmless? Acts deemed harmless by an individual are not harmless if they subvert the societal bonds of trust and self-restraint upon which liberty itself depends.

Which is not to say that all social regimes are regimes of liberty. Liberty requires voice -- the freedom to dissent -- and exit -- the freedom to choose one's neighbors and associates. Voice and exit depend, in turn, on the rule of law under a minimal state.

Liberty, because it is a social phenomenon and not an innate condition of humanity, must be won and preserved by an unflinching defense of a polity that fosters liberty through its norms, and the swift and certain administration of justice within that polity. The governments in and of the United States have long since ceased to foster liberty, but most Americans are captives in their own land and have no choice but to strive for the restoration of liberty, or something closer to it.

Who can restore liberty? Certainly not the self-proclaimed libertarians who are fixated on Mill's empty harm principle and align with the left on social norms. Traditional (i.e., Burkean) conservatism fosters the preservation and adherence of beneficial norms (e.g., the last six of the Ten Commandments). Thus, by necessity, the only true libertarianism is found in traditional conservatism. I am a traditional conservative, which makes me a libertarian -- a true one.

Notes about Usage

“State” (with a capital “S”) refers to one of the United States, and “States” refers to two or more of them. “State” and “States,” thus used, are proper nouns because they refer to a unique entity or entities: one or more of the United States, the union of which, under the terms and conditions stated in the Constitution, is the raison d’être for the nation. I reserve the uncapitalized word “state” for a government, or hierarchy of them, which exerts a monopoly of force within its boundaries.

Marriage, in the Western tradition, predates the state and legitimates the union of one man and one woman. As such, it is an institution that is vital to civil society and therefore to the enjoyment of liberty. The recognition of a more-or-less permanent homosexual pairing as a kind of marriage is both ill-advised and illegitimate. Such an arrangement is therefore a “marriage” (in quotation marks) or, more accurately, a homosexual cohabitation contract (HCC).

The words “liberal”, “progressive”, and their variants are usually enclosed in quotation marks (sneer quotes) because they refer to persons and movements whose statist policies are, in fact, destructive of liberty and progress. I sometimes italicize the words, just to reduce visual clutter.

I have reverted to the British style of punctuating in-line quotations, which I followed 40 years ago when I published a weekly newspaper. The British style is to enclose within quotation marks only (a) the punctuation that appears in quoted text or (b) the title of a work (e.g., a blog post) that is usually placed within quotation marks.

I have reverted because of the confusion and unsightliness caused by the American style. It calls for the placement of periods and commas within quotation marks, even if the periods and commas don’t occur in the quoted material or title. Also, if there is a question mark at the end of quoted material, it replaces the comma or period that might otherwise be placed there.

If I had continued to follow American style, I would have ended a sentence in a recent post with this:

What a hodge-podge. There’s no comma between the first two entries, and the sentence ends with an inappropriate question mark. With two titles ending in question marks, there was no way for me to avoid a series in which a comma is lacking. I could have avoided the sentence-ending question mark by recasting the list, but the items are listed chronologically, which is how they should be read.

This not only eliminates the hodge-podge, but is also more logical and accurate. All items are separated by commas, commas aren’t displaced by question marks, and the declarative sentence ends with a period instead of a question mark.